United States District Court, D. Colorado
DISCOVERY ORDER
S.
Kato Crews U.S. Magistrate Judge
This
order addresses the simultaneous discovery briefs filed by
the parties on November 11, 2019 [#49 (Plaintiff's
Discovery Brief) and #50 (Defendant's Discovery
Brief)].[1] Those briefs address the issue of whether
Defendant's Requests for Admissions (“RFAs”)
served on Plaintiff are deemed admitted. The Court has
reviewed the briefs, relevant case law, and docket
filings.[2] No. hearing is necessary to resolve this
dispute. The Court construes this dispute as raising two
issues: (1) whether Defendant's RFAs are deemed admitted;
and, if so, (2) whether Plaintiff may withdraw or amend the
admissions.
A.
BACKGROUND
This
case arises out of Plaintiff Deanne Sammond's (“Dr.
Sammond”) employment as a post-doctoral researcher and
Researcher III for Defendant Alliance for Sustainable Energy,
LLC (“Alliance”). Alliance discharged Dr. Sammond
on May 21, 2019. Dr. Sammond alleges her discharge was in
retaliation for her prior complaints of sex discrimination.
She brings five claims against Alliance under Title VIII and
the Colorado Anti-Discrimination Act (“CADA”) for
sex discrimination, retaliation, and wrongful discharge in
violation of public policy. Alliance contends that Dr.
Sammond was discharged because she sent an email disparaging
her colleagues. This discovery dispute arises out of Dr.
Sammond's untimely response to Alliance's three RFAs.
[#48 at ¶2.]
Alliance
served its first set of discovery requests, including three
RFAs, on Dr. Sammond's counsel by email on September 18,
2019. [#49-1 at p.11.] Dr. Sammond's responses
were due October 18, 2019. [#50 at p.1.] Two days before the
deadline, Dr. Sammond asked Alliance to agree to extend her
deadline to respond to the RFAs. [#49 at p.2.] The reason
defense counsel gave for the extension was that, “until
shortly before [the deadline to respond], he mistakenly
thought that he could complete them on time.”
[Id.] Alliance did not agree to the extension. Dr.
Sammond then filed her “First Motion for Extension of
Time to Respond to Alliance's First Set of
Discovery” on October 18, 2019, which was the day her
responses were due. [Id.; see also #44.]
The
Court denied that motion on October 21, 2019, for failure to
comply with Chief Judge Brimmer's practice standards.
[#46.] Dr. Sammond then served her responses to
Alliance's discovery requests on October 22, 2019, four
days after her deadline. [#50 at p.2.] In those responses,
rather than specifically admit or deny each RFA, she only
raised “frivolous objections on grounds of relevance
and attorney-client privilege, ” according to Alliance.
[#50-2 at pp. 19-20.] For these reasons, Alliance asserts
that all three RFAs are automatically deemed admitted per
Fed.R.Civ.P. 36(a)(3).
The
disputed RFAs and responses are as follows:
REQUEST FOR ADMISSION NO. 1: Admit
that your counsel drafted the May 9, 2019 [e]mail.
RESPONSE: Plaintiff objects to this
interrogatory on the basis that it seeks to discover
privileged attorney-client communications, and that it seeks
to discover information protected by the attorney
work-product doctrine. Plaintiff further objects on the basis
that the identity of the drafter is no (sic) relevant to any
claim or defense in this action. The dispute regarding the
email is whether it is protected activity under the CADA and
Title VII. That analysis is not changed identifying [sic] the
drafter.
REQUEST FOR ADMISSION NO. 2: Admit
that at least one co-worker at Alliance cautioned you not to
send the May 9, 2019 [e]mail before you sent it.
RESPONSE: Plaintiff objects on the
basis that this request seeks information not relevant to any
claim or defense in this case. The dispute regarding the
email is whether it is protected activity under the CADA and
Title VII. Whether a co-worker cautioned Plaintiff or not is
not relevant to that analysis.
REQUEST FOR ADMISSION NO. 3: Admit
that you told at least one co-worker at Alliance that your
attorney suggested that you send the May 9, 2019 [e]mail.
RESPONSE
: Plaintiff objects to this
interrogatory on the basis that it seeks to discovery (sic)
privileged attorney-client communications. Additionally, had
Plaintiff made such a statement, it would not constitute
knowing and voluntary waiver of the privilege, hence ...